Exhibit 99.5
Sections 851 to 860 of the Maine Business Corporation Act
(S) 851. Definitions
As used in this subchapter, unless the context otherwise indicates, the
following terms have the following meanings.
1. Corporation. "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger.
2. Director; officer. "Director" or "officer" means an individual who is or
was a director or officer, respectively, of a corporation or who, while a
director or officer of the corporation, is or was serving at the corporation's
request as a director, officer, partner, trustee, employee or agent of another
domestic or foreign corporation, partnership, joint venture, trust, employee
benefit plan or other entity. A director or officer is considered to be serving
an employee benefit plan at the corporation's request if the director's or
officer's duties to the corporation also impose duties on, or otherwise involve
services by, the director or officer to the plan or to participants in or
beneficiaries of the plan. "Director" or "officer" includes, unless the context
requires otherwise, the estate or personal representative of a director or
officer.
3. Disinterested director. "Disinterested director" means a director who,
at the time of a vote referred to in section 854, subsection 3 or a vote or
selection referred to in section 856, subsection 2 or 3, is not:
A. A party to the proceeding; or
B. An individual having a familial, financial, professional or
employment relationship with the director whose indemnification or advance for
expenses is the subject of the decision being made, which relationship would, in
the circumstances, reasonably be expected to exert an influence on the
director's judgment when voting on the decision being made.
4. Expenses. "Expenses" includes attorney's fees.
5. Liability. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine, including an excise tax assessed with respect to an
employee benefit plan, or reasonable expenses incurred with respect to a
proceeding.
6. Official capacity. "Official capacity" means:
A. When used with respect to a director, the office of director in a
corporation; and
B. When used with respect to an officer, as contemplated in section
857, the office in a corporation held by the officer.
"Official capacity" does not include service for any other domestic or
foreign corporation or any partnership, joint venture, trust, employee benefit
plan or other entity.
7. Party. "Party" means an individual who was, is or is threatened to be
made a defendant or respondent in a proceeding.
8. Proceeding. "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, arbitrative
or investigative and whether formal or informal.
(S) 852. Permissible indemnification
1. Indemnification of director. Except as otherwise provided in this
section, a corporation may indemnify an individual who is a party to a
proceeding because that individual is a director of the corporation against
liability incurred in the proceeding if:
A. The individual's conduct was in good faith and the individual
reasonably believed:
(1) In the case of conduct in the individual's capacity as
director, that the individual's conduct was in the best interests of the
corporation;
(2) In all other cases, that the individual's conduct was at
least not opposed to the best interests of the corporation; and
(3) In the case of any criminal proceeding, the individual had no
reasonable cause to believe the individual's conduct was unlawful; or
B. The individual engaged in conduct for which broader indemnification
has been made permissible or obligatory under a provision of the corporation's
articles of incorporation as authorized by section 202, subsection 2, paragraph
E.
2. Employee benefit plan. The conduct of a director with respect to an
employee benefit plan for a purpose the director reasonably believed to be in
the interests of the participants in, and the beneficiaries of, the plan is
conduct that satisfies the requirement of subsection 1, paragraph A.
3. Termination of proceeding. The termination of a proceeding by judgment,
order, settlement or conviction or upon a plea of nolo contendere or its
equivalent is not of itself determinative that the director did not meet the
relevant standard of conduct described in this section.
4. Court order. Unless ordered by a court under section 855, subsection 1,
paragraph C, a corporation may not indemnify one of its directors:
A. In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant standard
of conduct under subsection 1; or
B. In connection with any proceeding with respect to conduct for which
the director was adjudged liable on the basis that the director received a
financial benefit to which the director was not entitled, whether or not
involving action in the director's official capacity.
(S) 853. Mandatory indemnification
A corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which the director was
a party because the director was a director of the corporation against
reasonable expenses incurred by the director in connection with the proceeding.
(S) 854. Advance for expenses
1. Advance funds. A corporation may, before final disposition of a
proceeding, advance funds to pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding because the director is a
director of that corporation if the director delivers to the corporation:
A. A written affirmation of the director's good faith belief that the
director has met the relevant standard of conduct described in section 852 or
that the proceeding involves conduct for which liability has been eliminated
under a provision of the corporation's articles of incorporation as authorized
by section 202, subsection 2, paragraph D; and
B. The director's written undertaking to repay any funds advanced if
the director is not entitled to mandatory indemnification under section 853 and
it is ultimately determined under section 855 or 856 that the director has not
met the relevant standard of conduct described in section 852.
2. Unlimited obligation. The undertaking required by subsection 1,
paragraph B must be an unlimited general obligation of the director but need not
be secured and may be accepted without reference to the financial ability of the
director to make repayment.
3. Authorization. Authorizations under this section must be made:
A. By the corporation's board of directors:
(1) If there are 2 or more disinterested directors, by a majority
vote of all the disinterested directors, a majority of whom for this purpose
constitutes a quorum, or by a majority of the members of a committee of 2 or
more disinterested directors appointed by a majority vote of all the
disinterested directors; or
(2) If there are fewer than 2 disinterested directors, by the
vote necessary for action by the corporation's board of directors in accordance
with section 825, subsection 3, in which authorization directors who do not
qualify as disinterested directors may participate; or
B. By the shareholders, but shares owned by or voted under the control
of a director who at the time does not qualify as a disinterested director may
not be voted on the authorization.
(S) 855. Court-ordered indemnification; advance for expenses
1. Application for indemnification or advance. A director who is a party to
a proceeding because that director is a director of the corporation may apply
for indemnification or an advance for expenses to the court conducting the
proceeding or to another court of competent jurisdiction. After receipt of an
application and after giving any notice the court considers necessary, the court
shall:
A. Order indemnification if the court determines that the director is
entitled to mandatory indemnification under section 853;
B. Order indemnification or an advance for expenses if the court
determines that the director is entitled to indemnification or an advance for
expenses pursuant to a provision authorized by section 859, subsection 1; or
C. Order indemnification or an advance for expenses if the court
determines, in view of all the relevant circumstances, that it is fair and
reasonable:
(1) To indemnify the director; or
(2) To advance expenses to the director even if the director has
not met the relevant standard of conduct set forth in section 852, subsection 1,
failed to comply with section 854 or was adjudged liable in a proceeding
referred to in section 852, subsection 4, paragraph A or B, but, if the director
was adjudged so liable, the director's indemnification must be limited to
reasonable expenses incurred in connection with the proceeding.
2. Court determines director entitled to indemnification. If the court
determines that the director is entitled to indemnification under subsection 1,
paragraph A or to indemnification or an advance for expenses under subsection 1,
paragraph B, the court shall also order the corporation to pay the director's
reasonable expenses incurred in connection with obtaining the court- ordered
indemnification or advance for expenses. If the court determines that the
director is entitled to indemnification or an advance for expenses under
subsection 1, paragraph C, the court may also order the corporation to pay the
director's reasonable expenses to obtain the court-ordered indemnification or
advance for expenses.
(S) 856. Determination and authorization of indemnification
1. Indemnify. A corporation may not indemnify a director under section 852
unless authorized for a specific proceeding after a determination has been made
that indemnification of the director is permissible because the director has met
the relevant standard of conduct set forth in section 852.
2. Determination of permissibility. A determination under subsection 1 that
indemnification is permissible must be made:
A. If there are 2 or more disinterested directors, by the
corporation's board of directors by a majority vote of all the disinterested
directors, a majority of whom for this purpose constitutes a quorum, or by a
majority of the members of a committee of 2 or more disinterested directors
appointed by a majority vote of all the disinterested directors;
B. By special legal counsel:
(1) Selected in the manner prescribed in paragraph A; or
(2) If there are fewer than 2 disinterested directors, selected
by the corporation's board of directors in which selection directors who do not
qualify as disinterested directors may participate; or
C. By the shareholders, but shares owned by or voted under the control
of a director who at the time does not qualify as a disinterested director may
not be voted on the determination.
3. Authorization. Authorization of indemnification must be made in the same
manner as the determination that indemnification is permissible, except that if
there are fewer than 2 disinterested directors or if the determination is made
by special legal counsel, authorization of indemnification must be made by those
entitled under subsection 2, paragraph B, subparagraph (2) to select special
legal counsel.
(S) 857. Indemnification of officers
1. Indemnify. A corporation may indemnify and advance expenses under this
subchapter to an officer of the corporation who is a party to a proceeding
because that officer is an officer of the corporation:
A. To the same extent as a director; and
B. If the officer is an officer but not a director, to such further
extent as may be provided by the corporation's articles of incorporation, the
bylaws, a resolution of the corporation's board of directors or a contract
except for:
(1) Liability in connection with a proceeding by or in the right
of the corporation other than for reasonable expenses incurred in connection
with the proceeding; or
(2) Liability arising out of conduct that constitutes:
(a) Receipt by the officer of a financial benefit to which
the officer is not entitled;
(b) An intentional infliction of harm on the corporation or
the shareholders; or
(c) An intentional violation of criminal law.
2. Action of officer. Subsection 1, paragraph B applies to an officer who
is also a director if the basis on which the officer is made a party to the
proceeding is an act or omission solely as an officer.
3. Mandatory indemnification. An officer who is not a director is entitled
to mandatory indemnification under section 853 and may apply to a court under
section 855 for indemnification or an advance for expenses, in each case to the
same extent to which a director may be entitled to indemnification or an advance
for expenses under those provisions.
(S) 858. Insurance
A corporation may purchase and maintain insurance on behalf of an
individual who is a director or officer of the corporation, or who, while a
director or officer of the corporation, serves at the corporation's request as a
director, officer, partner, trustee, employee or agent of another domestic or
foreign corporation, partnership, joint venture, trust, employee benefit plan or
other entity against liability asserted against or incurred by that individual
in that capacity or arising from the individual's status as a director or
officer, whether or not the corporation would have power to indemnify or advance
expenses to the individual against the same liability under this subchapter.
(S) 859. Variation by corporate action; application of subchapter
1. Obligatory provision. A corporation may, by a provision in its articles
of incorporation or bylaws or in a resolution adopted or a contract approved by
its board of directors or shareholders, obligate itself in advance of the act or
omission giving rise to a proceeding to provide indemnification in accordance
with section 852 or advance funds to pay for or reimburse expenses in accordance
with section 854. Any such obligatory provision is deemed to satisfy the
requirements for authorization referred to in sections 854, subsection 3 and
856, subsection 3. Any such provision that obligates the corporation to provide
indemnification to the fullest extent permitted by law is deemed to obligate the
corporation to advance funds to pay for or reimburse expenses in accordance with
section 854 to the fullest extent permitted by law, unless the provision
specifically provides otherwise.
2. Indemnify predecessor. Any provision pursuant to subsection 1 may not
obligate the corporation to indemnify or advance expenses to a director of a
predecessor of the corporation pertaining to conduct with respect to the
predecessor unless otherwise specifically provided. Any provision for
indemnification or an advance for expenses in the corporation's articles of
incorporation or bylaws or a resolution of the corporation's board of directors
or shareholders of a predecessor of the corporation in a merger or in a contract
to which the predecessor is a party, existing at the time the merger takes
effect, is governed by section 1107, subsection 1, paragraph D.
3. Limit indemnification. A corporation may, by a provision in its articles
of incorporation, limit any of the rights to indemnification or an advance for
expenses created by or pursuant to this subchapter.
4. Appearance as witness. This subchapter does not limit a corporation's
power to pay or reimburse expenses incurred by a director or an officer in
connection with the director's or officer's appearance as a witness in a
proceeding at a time when the director or officer is not a party.
5. Maintain insurance. This subchapter does not limit a corporation's power
to indemnify, advance expenses to or provide or maintain insurance on behalf of
an employee or agent.
(S) 860. Exclusivity of subchapter
A corporation may provide indemnification or advance expenses to a director
or an officer only as permitted by this subchapter.